Bureaucratic Resistance from Below, by Jennifer Nou

Donald Trump is the President-Elect with both houses of Congress at his disposal. He promises judicial nominations to help bring the courts under his sway. He invokes authoritarian rulers as paragons of leadership. Trump’s instinctive reaction to dissent is not to listen, but to destroy. And what hopes lie in the moderating norms of the presidency are obliterated by Twitter outbursts. The future of the separation-of-powers looks bleak.

Many have thus taken solace at the prospect of another presidential check: the federal bureaucracy (see, e.g., here, here, and here). Career staff are a diverse bunch, but what unites them is their tenure and salary protections; by law, they are hired on the basis of merit, not political ties. As a result, they often enter government with professional norms informed by technical or legal training. Moreover, political appointees cannot fire them without a costly fight. Unsurprisingly perhaps, the federal bureaucracy takes the long view.

It is thus the right time to ask what levers of resistance are available to civil servants. These levers may be especially attractive to those faced with one of several prospects: top-down orders to carry out illegal tasks, suppress information, or doctor technical documents. This question also arises at a time when many law students are questioning whether they should enter government service. Their deepest worries are not so much partisan as motivated by fears they will be directed to violate their legal or ethical obligations.

In response, below is a catalogue of tactics that civil servants have historically used to defy their superiors, both covertly and overtly. From the outset, let me be clear that this list is descriptive, not prescriptive. There are thorny legal and moral questions about whether and when this is a good idea. Some of the examples below reflect both good- and bad- faith. Wherever one comes out on these debates, like it or not, the reality is that the administrative state has a history of bureaucratic resistance — a dynamic that Rosemary O’Leary refers to as “guerilla government”; many others have demonstrated the phenomenon empirically.

So what mechanisms have civil servants used to resist from below?

Slow down. Slowdowns occur when employees perform their duties, but drag their feet when doing so. Slowdowns are used in the private sector in lieu of overt strikes as they are more difficult to detect. For similar reasons, civil servants use them too. Take careerists at USDA’s Food and Nutrition Service disturbed by President Reagan’s efforts to dash the food stamp budget and deem ketchup a “vegetable” in school lunches. In one staff member’s words: “I did what I was told to do but wouldn’t fight for their policies. I did what was technically required . . . I would just explain but not be an advocate.”

Build a record. In some ways, this strategy is the opposite of the above: instead of taking it easy, work harder. Work harder, that is, to build a record that will make it more difficult for the administrator to reverse the decision in good-faith. Appointees with reputations to protect may pause when faced with overwhelming evidence that the law or an emerging scientific consensus requires a particular path forward. This approach essentially depends on the power to persuade. Record-building was arguably the tactic used by EPA career staff who issued an advance notice of proposed rulemaking regarding the ability of the agency to regulate greenhouse gases under existing statutory authorities. Career officials helped compile over 600 pages outlining numerous legal paths to regulation, despite an unusual preface by the Bush-appointed EPA Administrator noting his personal skepticism. Building the record later helped pave the way for further regulatory action.

Leak. Perhaps the most famous example of a bureaucratic leak is that of Mark Felt, a.k.a., “Deep Throat.” Felt, of course, was a high-level official at the FBI during the Watergate years who regularly fed information to the Washington Post about the Nixon administration’s illegalities. Effective leaks, of course, do not have to be this dramatic, nor do they even have to be to the media. Many agencies leak internal documents to interest groups and other stakeholders who can then marshal opposition — a strategy used to great effect according to one senior official at the Bureau of Land Management during the Clinton administration: “It doesn’t matter what interest group or what administration; anyone who is sort of on the outs ha[s] people within agencies that are aligned with their interests.”

Enlist internal inspectors general, “offices of goodness,” and other allies. Federal inspector generals are legally authorized to combat fraud and abuse within agencies mainly through audits and investigations. They currently exist in over 70 federal agencies. Cooperating with them has helped shed light on what were previously only rumored illegalities. Exhibit A: the explosive report on the politicized hiring practices of the George W. Bush Department of Justice. Offices of Goodness, to use Margo Schlanger’s terminology, are similarly offices embedded within agencies, charged with promoting a value that constrains and checks the agency’s mission. Examples include the Department of Homeland Security’s Office for Civil Rights and Civil Liberties and the National Security Agency’s Office of Civil Liberties and Privacy. Enlisting the aid of both inspector generals and offices of goodness (secretly or not) can help foster powerful internal agency allies.

Sue the agency. Should more under-the-radar strategies fail, some civil servants have instead chosen to go to court. This path generates public attention and can increase external support. Various Immigration and Customs Enforcement border agents, for example, objected to the Obama administration’s directives regarding undocumented immigrants. In their view, these orders required them to violate federal law and thus required judicial intervention.

Resign. Finally, if efforts to exercise voice in the absence of loyalty fail, then what may be left is the last option in Albert Hirschman’s trifecta: to exit. Such was the decision of several FDA staffers who resigned in protest over the Obama administration’s handling of Plan B, an emergency contraception pill. By overruling the agency’s determination that the pill was safe for girls under age 15 over-the-counter, the White House in their view had politically interfered in what should have been a scientific determination.

For those contemplating any of the above (or simply horrified at the prospect — unitary executive theorists, raise your hands), know that these actions do not come without risks. Some of the civil servants that undertook them faced internal sanctions or were demoted or transferred. Some simply lost the confidence of their superiors and were cut out of further policy-making decisions. Ultimately, the choice to resist from below can — and perhaps should be — a fraught one. But it is a choice nonetheless, and the costs may help to ensure that what resistance remains is more often evidence of a canary in a coal mine than a bureaucracy run amok.

Jennifer Nou is the Neubauer Family Assistant Professor of Law at the University of Chicago Law School.

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About Jennifer Nou

Jennifer Nou is Neubauer Family Assistant Professor at the University of Chicago Law School. Her research and teaching interests are primarily in administrative law, legislation, and the separation-of-powers. Prior to joining the faculty, she was a Public Law Fellow at the Law School and also worked as a policy analyst and special assistant at the Office of Information and Regulatory Affairs. Jennifer is a graduate of Yale College and Yale Law School, and received an M. Phil in Politics from Oxford University as a Marshall Scholar. After law school, she was a law clerk to Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and then to Justice Stephen Breyer of the U.S. Supreme Court.

“Trump’s instinctive reaction to dissent is not to listen, but to destroy.” – Somehow, the persecution (and threatened prosecution) of commentators questioning Obama’s AGW position and “Green Energy” proposals comes to mind. And “top-down orders to carry out illegal tasks suppress information, or doctor technical documents” reminds me of Benghazi and of the ensuing email scandal. Jennifer Nou certainly has a lot of information available to illustrate her point.